# Appendix — Mass v. City of Carlsbad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0951%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 513 U.S. 1128 ## Text Supreme Court, U.8. FILED N 941018 DE 219% ‘\ J _— OFFICE OF THE CLERK No. In The SUPREME COURT OF THE UNITED STATES October Term, 1994 THOMAS A. MASS, pro se and JANET A. MASS, Petitioners, v. CITY OF CARLSBAD, a Municipal Corporation; FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP, a California Limited Partnership, Respondents. On Petition for a Writ of Certiorari to the Court of Appeal of California, Fourth Appellate District, Division One APPENDIX VOLUME II THOMAS A. MASS Counsel of Record 2851 Torry Court Carlsbad, CA 92009 Tel: (619) 931-0100 Fax: (619) 438-7850 CHRISTOPHER LIEF MASS Of Counsel Pacific Bay Towers 2035 Fourth Street, Suite 107-C Santa Monica, CA 90405 Tel: (310) 399-3050 5 | No. In The SUPREME COURT OF THE UNITED STATES October Term, 1994 THOMAS A. MASS, pro se and JANET A. MASS, Petitioners, Vv. CITY OF CARLSBAD, a Municipal Corporation; FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP, a California Limited Partnership, Respondents. On Petition for a Writ of Certiorari to the Court of Appeal of California, Fourth Appellate District, Division One APPENDIX VOLUME II THOMAS A. MASS Counsel of Record 2851 Torry Court Carlsbad, CA 92009 Tel: (619) 931-0100 Fax: (619) 438-7850 CHRISTOPHER LIEF MASS Of Counsel Pacific Bay Towers 2035 Fourth Street, Suite 107-C Santa Monica, CA 90405 Tel: (310) 399-3050 APPENDIX II Table of Contents PART ONE Constitutions, Statutes and Ordinances........... 1 PART TWO Docket Entries for the following courts Trial Court, Court of Appeal, and the Califomia Supreme Court .................... 18 PART THREE Lengthy quotations in support of jurisdictional aspects of the federal question involved 39 I. Inverse Condemnation. .............. 40 Ii. Statute of Limitations................ 76 lil. Denial Of The Civil Rights Cause Of Action §1983 Including Inverse Condemnation And The Cause Of Action For A Writ Of Mandate Ee 92 IV. If Proceedings, Decisions And Laws Upon Which They Are Based Are Void For Any Reason, They Are Subject To Being Collaterally Attacked. In Such Cases, The Statute Of Limitations Is Not A Defense, Laches Maybe, Not The Statute Of Limitations eo ee 122 VY. Indemnity, Immunity And Intention..... 134 i SE 6A 5A en es Gree ke 142 Wee. Fe NE kn 0 bis ew dane 143 VIII. Amended And Supplemental Complaint... 146 IX. Constitution Of The United States Is The Supreme Law Of The Land....... 148 ii PART ONE CONSTITUTIONS, STATUTES AND CODES CONSTITUTION FOR THE UNITED STATES ARTICLE SIX This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. AMENDMENT ARTICLE FIVE No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. AMENDMENT ARTICLE SEVEN In suits at common law, where the value of controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. AMENDMENT ARTICLE FOURTEENTH Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the Unites States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. FEDERAL STATUTES 42 U.S.C. § 1983. Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1985. Conspiracy to interfere with civil rights Obstructing justice; intimidating party, witness, or juror (2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person Of property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws: Depriving persons of rights or privileges (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premise of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. 42 U.S.C. § 1986. Action for neglect to prevent Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of 4 persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued. 42 U.S.C. § 1988. Proceedings in vindication of civil rights; attorney's fees; expert fees (a) Applicability of statutory and common law. The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title "CIVIL RIGHTS,” and of Title "CRIMES," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, modified and changed by the constitution and Statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. (b) Attorney's fees In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 and of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. (c) Expert fee In awarding an attorney's fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney's fee. CALIFORNIA GOVERNMENT CODE § 65091. Notice by mail or delivery (a)(3) Notice of the hearing shall be mailed or delivered at least 10 days prior to the hearing to all owners of real property as shown on the latest equalized assessment roll within 300 feet of the real property that is the subject of the hearing. In lieu of utilizing the assessment roll, the local agency may utilize records of the county assessor or tax collector which contain more recent information than the assessment roll. If the number of owners to whom notice would be mailed or delivered nursuant to this paragraph or paragraph (1) is greater than 1,000, a local agency, in lieu of mailed or delivered notice, may provide notice by placing a display advertisement of at least one eighth page in at least one newspaper of general circulation within the local agency in which the proceeding is conducted at least 10 days prior to the hearing. (c) In addition to me notice required by this section, a local agency may give notice of the hearing in any other manner it deems necessary or desirable. § 65351. Opportunities for community involvement; Public hearings During the preparation or amendment of the general plan, the planning agency shall provide opportunities for the involvement of citizens, public agencies, public utility companies, and civic, 6 education, and other community groups, through public hearings and any other means the city or county deems appropriate. § 66451.4 Notice of application to owners within 300 feet (a) In addition to the notice required by Section 66451.3, whenever approval of a tentative map will constitute a substantial or significant deprivation of the property rights of other landowners, the local agency shall provide notice of the application to all persons, including businesses, corporations, or other public or private entitics, shown on the last equalized assessment roll, as owning real property within 300 feet of the property which is the subject of the application. (b) The notice shall be given by at least one of the following methods: (1) Direct mailing to me owners. (2) Posting of notice by the local agency on and off the Site in the area where the project is to be located. (3) Delivery of notice by any means other than mail to the owners. (4) Any other method reasonably calculated by the local agency to provide actual notice of the hearing. (c) Nothing contained in this section shall preclude a local agency from providing additional notice by other means, nor shall the requirements of this section preclude the local agency from providing the necessary notice at the same time and in the same manner as public notice otherwise required by law for such project. (Added by Stats.1980, c. 1154, p. 3808, §1, eff. Sept. 26, 1980.) § 66451.4. [Added by Stats 1980 ch 1151, §2, ch 1154 §1, effective September 29, 1980, Stats 1982 ch 87 §14, effective March |, 1982 and repealed by Stats 1984 ch 1009 §§31, 32.] § 66458. Approval (a) The legislative body shall, at the mecting at which it receives the map or, at its next regular meeting after the meeting at which it receives the map, approve the map if it conforms to all the requirements of this chapter and any local subdivision ordinance applicable at the time of approval or conditional approval of the tentative map and any rulings made thereunder. If the map docs not conform, the Icgislative body shall disapprove the map. (b) If the legislative body does not approve or disapprove the map within the prescribed time, or any authorized extension thereof, and the map conforms to all requirements and rulings, it shall be deemed approved, and the clerk of the legislative body shall certify its approval thereon. (c) The mecting at which the legislative body receives the map shall be the date on which the clerk of the legislative body receives the map. § 66473. Disapproval for noncompliance A local agency shall disapprove a map for failure to meet or perform any of the requirements or conditions imposed by this division or local ordinance enacted pursuant thereto; provided that a final map shall be disapproved only for failure to meet or perform requirements or conditions which were applicable to the subdivision at the time of approval of the tentative map; and provided further that such disapproval shall be accompanied by a finding identifying the requirements or conditions which have not been met or performed. Such local ordinance shall include, but need not be limited to, a procedure for waiver of the provisions of this section when the failure of the map is the result of a technical and inadvertent error which, in the determination of the local agency, does not materially affect the validity of the map. ' § 66473.5. Required findings No local agency shall approve a tentative map, Or a parcel map for which a tentative map was not required, unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan required by Article 5 (commencing with Section 65300) of Chapter 3 of Division 1, or any specific plan adopted pursuant to Article 8 (commencing with Section 65450) of Chapter 3 of Division 1. A proposed subdivision shall be consistent with a general plan or a specific plan only if the local agency has officially adopted such a plan and the proposed subdivision or land use is compatible with the objectives, policies, general land uses, and programs specified in such a plan. § 66474. Denial of approval of map upon certain findings A legislative body of a city or county shall deny approval of a tentative map, or a parcel map for which a tentative map was not required, if it makes any of the following findings: (a) That the proposed map is not consistert with applicable general and specific plans as specified in Section 65451. (b) That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. (c) That the site is not physically suitable for the :ype of development. (d) That the site is not physically suitable for the proposed density of development. (ce) That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. (f) That the design of the subdivision or type of improvements is likely to cause serious public health problems. (g) That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially - equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to casements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision. § 66474.1. Approval of final or parcel map complying with previously approved tentative map A legislative body shall not deny approval of a final or parcel map if it has previously approved a tentative map for the proposed subdivision and if it finds that the final or parcel map is in substantial compliance with the previously approved tentative map. § 66474.9 Indemnification as condition for map application or approval (a) Except as provided in subdivision (b), a local agency may not require, as a condition for a tentative, parcel, or final map application or approval, that the subdivider or an agent of the subdivider, defend, indemnify, or hold harmless the local agency or its agents, officers, and employees from any claim, action, or proceeding against the local agency as a result of the action or inaction of the local agency, advisory agency, appeal board, or legislative body in reviewing, approving, or denying the map. 10 (b)(1) A local agency may require, as a condition for a tentative, parcel, or final map application or approval, that the Subdivider defend, indemnify, and hold harmless the local agency or its agents, officers, and employees from any claim, action, or proceeding against the local agency or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the local agency, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37. [Remainder of section omitted in printing. } § 66499.37. Limitation period Any action of proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a Subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such ection or proceeding is commenced and service of summons effected within 90 days after the date of such decision. Thereafter all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision or of such proceedings, acts or determinations. Any such proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings. CALIFORNIA VEHICLE CODE § 21. Uniformity of code Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein. CALIFORNIA CIVIL CODE § 3482. Acts under statutory authority not a nuisance WHAT IS NOT DEEMED A NUISANCE. Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. (Enacted 1872.) CALIFORNIA CODE OF CIVIL PROCEDURE § 338 (j) An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution. § 1094.5 (a) Where the writ is issued for the purpose of inquiring into me validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury... . (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. [Balance of section omitted in printing.} 12 § 1094.6 (f) In making a final decision as defined in subdivision (ce), the local agency shall provide notice to the party that the lime within which judicial review must be sought is governed by this section. CARLSBAD MUNICIPAL CODE § 1.16.010 Time limits for judicial review. (a) Judicial review of any decision of the city or of any commission, board, officer, or agent of the city may be had pursuant to Code of Civil Procedure, Section 1094.5, only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section. (b) Any such petition shall be filed not later than the ninetieth day following the date on which the decision becomes final. If there is no provision for reconsideration of the decision in any applicable provision of any Statute, charter, ordinance, or rule, for the purposes of this section, the decision is final on the date it is made. If there is such provision for reconsideration, the decision is final for the Purposes of this section upon the expiration of the period during which such reconsideration can be sought; provided, that if reconsideration is sought pursuant to any such provision, the decision is final for the purposes of this section on the date that reconsideration is rejected. (c) The complete record of the proceedings shall be prepared by the city or its commission, board, officer, or agent which made the decision and shall be delivered to the party requesting such record within ninety days after he has filed a written request therefor, A request for the preparation of the record of the proceedings shall be filed with the person designated in the final decision. Such person shall, within ten days of such request, notify the party of the estimated costs of the preparation of the requested record. The party requesting Such record shall, within ten days of such notification, deposit with the person designated in the decision an amount sufficient 13 to cover the cstimated cost. If during the preparation of the record it appears that additional costs will be incurred, the party requesting such record may be notified and, if requested, shall deposit such additional amounts before the record will be completed. If the cost of the preparation of the record exceeds the amount deposited, the party requesting such record shall pay this additional amount. If the amount deposited exceeds the cost, the difference shall be returned to the party requesting such record. Upon receiving the required deposit, the person designated in the decision shall promptly prepare such record in accordance with the request. Such record shall include the transcript of the proceedings; all pleadings; all notices and orders; any proposed decision by a hearing officer; the final decision; all admitted exhibits; all rejected exhibits in the possession of the city or its commission, board, officer, or agent; all written evidence; and any other papers in the case. (d) If the party files a request for the record as specified in subsection (c) of this section within ten days after the date the decision becomes final as provided in subsection (b) of this section, the time within which a petition pursuant to Code of Civil Procedure, Section 1094.5, may be filed shall be extended to not later than the thirtieth day following the date on which the record is cither personally delivered or mailed to the party or his attorney of record, if he has one. (ec) As used in this section, “decision” means any adjudicatory administrative decision made, after hearing, suspending, demoting, or dismissing an officer or employee, revoking or denying an application for a permit or a license, or denying an application for any retirement benefit or allowance. (f) In making a final decision as defined in subsection (ec) of this section, the city shall provide notice to the party that the time within which judicial review must be sought is governed by this section. Upon giving notice of any decision subject to this section, the person responsible to issue such decision shall include in the decision a statement substantially as follows: The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure, Section 14 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking judicial review must be filed in the appropriate court not later than the ninctieth day following the date on which this decision becomes final; however, if within ten days after the decision becomes final a request for the record of the proceedings accompanied by the required deposit in an amount sufficient to cover the estimated cost of preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with (name and address of designated person) As used in this section, “party" means an officer or employee who has been suspended, demoted, or dismissed; a person whose permit or license has been revoked or whose application for a permit or license has been denied; or a person whose application for a retirement benefit or allowance has been denied. (Ord. 1203 § 1, 1977) CARLSBAD SUBDIVISION ORDINANCE §20.20.010 Maps to conform to requirements of planning commission or city council. All final and parcel maps for major subdivisions shall conform to the requirements of the Subdivision Map Act and this title and also shall conform to the requirements specified in the planning commission or city council resolution approving or conditionally approving the tentative map. (Ord. 9602 § 15, 1981; Ord. 9417 § 2 (part), 1975) 15 RE” §20.20.020 City council to approve maps. (a) The city council shall not consider a final map unless there is a valid tentative map for the subdivision. (b) No final map shall be filed in he office of the county recorder until approved by the city council, but such map shall be disapproved only for failure to meet or perform requirements or conditions which were applicable to the subdivision at the time of approval of the tentative map, providing that any such disapproval shall be accompanied by a finding identifying the requirements or conditions which have not been met or performed. The city council may waive any failure of the map to meet such requirements and conditions if such failure is a result of a technical and inadvertent error which, in the determination of the city council, doesn't materially affect the validity of the map. §20.20.040 Grant of open space easement. In the event that a grant of an open space easement is to be made over any portion of the subdivision, the final map shall contain a certificate signed and acknowledged by those parties having any record title interest in the subdivided land granting such open space easement and stating the conditions of the grant. (Ord. 9417 § 2 (part), 1975) §21.54.060 Notices. Notice of public hearing shall be given as follows: (c) Notice of the hearing shall be mailed or delivered at least ten days prior to the hearing to all owners of real property as shown on the latest equalized assessment roll within six hundred feet, or three hundred feet for variance applications, of the real property that is the subject of the hearing. In lieu of utilizing the assessment roll, records of the county assessor or tax collector which contain more recent information than the assessment roll may be usec. If the number of owners to whom 16 notice would be mailed or delivered pursuant to this subparagraph is greater than one thousand in lieu of mailed or delivered notice, the city manager may permit notice to be given by placing a display advertisement of at least one-eighth page in at least two newspapers of general circulation within the City at least ten days prior to the hearing. §21.54.064 Applicant's responsibilities. . (a) The applicant for any action requiring a noticed public hearing shall provide the city with a list of persons or entities to whom notice must be given and the addresses of such persons. The applicant shall also provide stamped, addressed envelopes for mailing notice. The list and the envelopes, if required, shall be provided to the city not more than forty-five nor less than thirty days prior to the time the matter is scheduled for hearing. If the number of persons to whom notice would be mailed exceeds one thousand the applicant may, in lieu of providing the stamped, addressed envelopes, provide an appropriate display advertisement. The applicant shall verify the accuracy of the list and the addresses. The secretary of the planning commission or the city clerk shall be responsible for informing the applicant of the date a matter is scheduled for hearing. (b) The applicant shall pay the cost of providing the notice required by this chapter. (Ord. 9758 § 19, 1985) §21.54.120 General plan amendments. All provisions of this chapter applicable to the amendm:nt of zone classifications shall also apply to amendments to the general plan or to any of the elements thereof. If the hearings for general plan amendments are held at the same time as hearings for zone amendments under Chapter 21.52, the notice of such hearings may be combined with those required for general plan amendments under this section. (Ord. NS-44 § 2, 1988; Ord. 9379 § 2, 1974) 17 PART TWO COURT DOCKET ENTRIES CHRONOLOGICAL INDEX TO IOINT APPENDIX IN LIEU OF CLERK'S TRANSCRIPT VOL. PAGE COMPLAINT FOR INVERSE CONDEMNATION AND NUISANCE REQUESTING DECLARATORY RELIEF AND IN THE ALTERNATIVE A WRIT OF MANDATE, ALL CAUSES ARE CLASS ACTIONS, FILED 10/18/91. ] 1 CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' DEMURRER AND NOTICE OF HEARING ON DEMURRER TO COMPLAINT OF “THOMAS A. MASS, JANET A. MASS, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED", FILED 12/2/91. 1 44 CITY OF CARLSBAD'S AND FIELD- STONE/LA COSTA'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT OF "THOMAS A. MASS, JANET A. MASS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED," FILED 12/2/91. 1 47 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY THE CITY OF CARLSBAD AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED, FILED 12/2/91. 1 51 18 VOL. PAGE NOTICE OF LODGMENT IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S DEMURRER AND MOTION TO STRIKE, FILED 12/2/91. | 73 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE AND IN SUPPORT OF PLAINTIFFS’ + COMPLAINT, FILED 1/8/92. I 75 NOTICE OF LODGMENT IN SUPPORT OF PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES OBJECTING TO DEFENDANTS’ DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT (INCLUDING AS AN EXHIBIT A COPY OF PLAINTIFFS’ PROPOSED SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES), FILED 1/8/92. ] 99 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIESIN OPPOSITION TO DEFENDANTS" DEMURRER AND MOTION TO STRIKE AND IN SUPPORT OF PLAINTIFFS’ COMPLAINT, LODGED WITH CLERK OF COURT 1/8/92. | 102 19 CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER AND MOTION TO STRIKE, FILED 1/17/92. MINUTES/ORDER OF THE COURT, HEARING DATE - 3/17/92 MINUTES/ORDER OF THE COURT, HEARING DATE - 3/27/92. NOTICE OF RULING ON DEMURRER AND MOTION TO STRIKE FILED BY CITY OF CARLSBAD AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP, FILED 4/1/92. FIRST AMENDED COMPLAINT FOR INVERSE CONDEMNATION AND NUISANCE REQUESTING DECLARA- TORY RELIEF AND IN THE ALTERNATIVE A WRIT OF MANDATE, ALL CAUSES ARE CLASS ACTIONS, FILED 4/1/92. CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' DEMURRER AND NOTICE OF HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT OF "THOMAS A. MASS, JANET A. MASS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED," FILED 4/16/92. 20 VOL. PAGE I 123 1 133 ] 134 | 135 ] 137 1 185 VOL. PAGE CITY OF CARLSBAD'S AND FIELDST ONE/ LA COSTA'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT OF "THOMAS A. MASS, JANET A. MASS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED," FILED 4/16/92. 1 188 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY THE CITY OF CARLSBAD AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED, FILED 4/16/92. | 192 NOTICE OF LODGMENT IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S DEMURRER AND MOTION TO STRIKE, FILED 4/16/92. H 211 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT, FILED 5/4/92. l 213 NOTICE OF LODGMENT IN SUPPORT OF PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE PLAINTIFFS' FIRST AMENDED COMPLAINT, FILED 5/4/92. 2 235 21 VOL. PAGE CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER AND MOTION TO STRIKE, FILED 5/8/92. 2 238 MINUTES/ORDER OF THE COURT, HEARING DATE - 5/12/92. 2 248 MINUTES/ORDER OF THE COURT, HEARING DATE - 5/22/92. 2 249 SECOND AMENDED COMPLAINT FOR INVERSE CONDEMNATION, NUISANCE AND/OR NEGLIGENCE, REQUESTING DECLARATORY RELIEF, AND IN THE ALTERNATIVE A WRIT OF MANDATE, FILED 5/22/92. 2 250 CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' DEMURRER TO AND NOTICE OF HEARING ON DEMURRER AND TO SECOND AMENDED COMPLAINT OF THOMAS A. MASS AND JANET A. MASS, FILED 6/15/92. 2 301 CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT, FILED 6/15/92. 2 304 22 VOL. PAGE CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES’ LIMITED PARTNERSHIP'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER TO AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT, FILED 6/15/92. 2 NOTICE OF LODGMENT IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP’S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT, FILED 6/15/92. 2 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE PLAINTIFFS’ SECOND AMENDED COMPLAINT, FILED 7/20/92. 2 NOTICE OF LODGMENT IN SUPPORT OF PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER AND MOTION TO STRIKE PLAINTIFFS' SECOND AMENDED COMPLAINT (WITH EXHIBIT T - MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE PLAINTIFFS’ SECOND AMENDED COMPLAINT), RECEIVED 7/20/92 2 23 308 327 329 362 CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' LIMITED PARTNERSHIP'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER TO AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT, FILED 7/23/92. MINUTES/ORDER OF THE COURT, HEARING DATE - 7/27/92. MINUTES/ORDER OF THE COURT, HEARING DATE - 8/7/92. THIRD AMENDED COMPLAINT FOR PLAINTIFFS' THIRD CAUSE OF ACTION FOR A WRIT OF MANDATE IN THE ALTERNATIVE, FILED 8/6/92. CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' DEMURRER TO AND NOTICE OF HEARING ON DEMURRER TO THIRD AMENDED COMPLAINT OF THOMAS A. MASS AND JANET A. MASS, FILED 9/3/92. CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT AND ALL OF PLAINTIFFS' AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 9/3/92. VOL. PAGE 2 381 2 391 2 392 2 393 2 438 2 441 VOL. PAGE NOTICE OF REQUEST FOR SANCTIONS, FILED 9/3/92. 2 445 CITY OF CARLSBAD'S AND FIELDSTONE LA COSTA ASSOCIATES' LIMITED PARTNERSHIP'S MEMORAN- DUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER TO AND MOTION TO STRIKE PORTIONS OF THE THIRD AMENDED COMPLAINT AND MOTION TO STRIKE ALL OF THE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 9/3/92. 2 447 DECLARATION OF RICHARD A. SCHULMAN IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/ LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S REQUEST FOR SANCTIONS, FILED 9/3/92. 3 467 NOTICE OF LODGMENT IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S DEMURRER TO AND MOTION TO STRIKE, FILED 9/3/92. 3 469 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' THIRD AMENDED COMPLAINT AND MOTION TO STRIKE ALL OF THE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/8/92. 3 471 25 VOL. PAGE DECLARATION OF THOMAS A. MASS IN OPPOSITION TO DEFENDANTS' MOTION FOR AWARD OF EXPENSES, COSTS AND ATTORNEY'S FEES AS SANCTIONS, FILED 10/8/92. 3 494 NOTICE OF LODGMENT IN SUPPORT OF PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' THIRD AMENDED COMPLAINT AND MOTION TO STRIKE ALL OF THE AMENDED AND SUPPLEMENTAL COMPLAINT (WITH ATTACHMENTS: CARLSBAD CITY ORDINANCE §1.116.010; §1.16.020; PLAINTIFFS’ CHART OF RULINGS ON DEMURRERS WITH ORDERS ATTACHED), FILED 10/8/92. 3 498 CITY OF CARLSBAD'S AND FIELD- STONE/LA COSTA ASSOCIATES’ LIMITED PARTNERSHIP'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER TO AND MOTION TO STRIKE PORTIONS OF THE THIRD AMENDED COMPLAINT AND MOTION TO STRIKE ALL OF THE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/13/92. 3 510 VOL. PAGE SUPPLEMENTAL DECLARATION OF RICHARD A. SCHULMAN IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S REQUEST FOR SANCTIONS, DATED 10/13/92. 3 520 SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF CITY OF CARLSBAD'S AND FIELDSTONE/ LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S DEMURRER TO AND MOTION TO STRIKE, FILED 10/13/92. 3 522 MINUTES/ORDER OF THE COURT - HEARING DATE - 10/15/92. 3 524 MINUTES/ORDER OF THE COURT - HEARING DATE - 10/23/92. 3 525 NOTICE OF RULING ON DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANTS CITY OF CARLSBAD AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP, DIRECTED TOWARD PLAINTIFFS’ THIRD AMENDED COMPLAINT AND AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/27/92. 3 526 NOTICE OF MOTION AND MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL, FILED 10/28/92. 3 528 27 VOL. PAGE NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE PLAINTIFFS' AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/28/92. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/28/92. 3 NOTICE OF LODGMENT IN SUPPORT OF MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/28/92. 3 AMENDED AND SUPPLEMENTAL COMPLAINT FOR PLAINTIFFS' CAUSE OF ACTIONS BASED ON THE DEPRIVATION OF THEIR RIGHTS SECURED BY THE UNITED STATES CONSTITUTION, REQUESTING MONEY DAMAGES, DECLARATORY RELIEF AND EQUITABLE RELIEF INCLUDING AN INJUNCTION, FILED 8/31/92, LODGED 10/28/92. 3 DECLARATION OF THOMAS A. MASS IN SUPPORT OF MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 10/28/92. 3 530 532 540 542 577 VOL. PAGE CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP'S EX PARTE APPLICATION FOR APPROVAL OF ORDER SUSTAINING DEMURRER WiTHOUT LEAVE AND DISMISSING ACTION, FILED 11/5/92. 3 579 DECLARATION OF RICHARD A. SCHULMAN IN SUPPORT OF EX PARTE APPLICATION OF CITY OF CARLSBAD AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP FOR APPROVAL OF ORDER SUSTAINING DEMURRER WITHOUT LEAVE AND DISMISSING ACTION, FILED 11/5/92. 3 583 ORDER GRANTING DEMURRER FILED ( BY DEFENDANTS CITY OF CARLSBAD AND FIELDSTONE/LA COSTA ASSOCIATES LIMITED PARTNERSHIP WITHOUT LEAVE TO AMEND, WITH ORDER ( DISMISSING ACTION [CCP §472d, E §581(f(1), §581d] DISPOSES OF E ENTIRE CASE AS TO ALL PARTIES, t FILED 11/5/92. 3 586 CITY OF CARLSBAD'S AND FIELDSTONE/LA COSTA ASSOCIATES' | MEMORANDUM OF POINTS AND qf AUTHORITIES IN OPPOSITION TO MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 11/20/92. 3 590 29 VOL. PAGE DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF MOTION TO SET ASIDE AND VACATE RULING AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 11/20/92. 3 607 DECLARATION OF RICHARD A. SCHULMAN IN OPPOSITION TO MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 11/20/92. 3 609 NOTICE OF LODGMENT (WITH REQUEST FOR JUDICIAL NOTICE) IN OPPOSITION TO MOTION TO SET ASIDE AND VACATE RULING AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, RECEIVED 11/20/92. 3 611 THOMAS A. MASS'S AND JANET A. MASS'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND MOTION FOR ORDER GRANTING LEAVE TO FILE PLAINTIFFS’ AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 11/25/92. 3 614 NOTICE OF LODGMENT (WITH ATTACHMENTS: PLAINTIFFS' CHART OF RULINGS ON DEMURRERS WITH ORDERS ATTACHED), FILED 11/25/92. MINUTES/ORDER OF THE COURT, HEARING DATE - 12/2/92. JUDGMENT, FILED 11/30/92, ENTERED 12/2/92, JUDGMENT BOOK 2237, PAGE 249. NOTICE OF RULING ON PLAINTIFFS' MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 12/8/92. ORDER DENYING MOTION TO SET ASIDE AND VACATE RULING OF DISMISSAL AND DENYING MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT, FILED 12/14/92. NOTICE OF ENTRY OF JUDGMENT, FILED 12/16/92. MEMORANDUM OF COSTS (SUMMARY), FILED 12/16/92. NOTICE OF APPEAL COMBINED WITH NOTICE OF ELECTION TO PROCEED UNDER CALIFORNIA RULES OF COURT, RULE 5.1, FILED 1/4/93. 31 VOL. PAGE 629 641 642 644 646 648 650 651 VOL. PAGE STIPULATION RE JOINT APPENDIX IN LIEU OF CLERK'S TRANSCRIPT PER CALIFORNIA RULE OF COURT 5.1(b), DATED JANUARY 23, 1993. 3 654 COURT OF APPEAL OF THE STATE OF CALIFORNIA FOR THE FOURTH APPELLATE DISTRICT DIVISION: 1 Case No, D0O18305 TITLE Mass, Thomas A. v. City of Carlsbad SUPERIOR COURT INFORMATION County: SAN DIEGO CIVO Superior Court No.: N53303 Superior Court Judge: Murphy Notice of Appeal Date: January 4, 1993 ATTORNEYS - LITIGANTS Mass, Thomas A. 2851 Torry Court Carlsbad, CA. 92009 Mass, Thomas A. PLAINTIFF-APPELLANT Mass, Janet A. 2851 Torry Court Carlsbad, CA. 92009 Mass, Janet A. PLAINTIFF-APPELLANT 32 Mc Donald, Hecht & Solberg Schulman, Richard A. 619-239-3444 600 W. Broadway, 8th F1. San Diego, CA. 92101 Fieldstone Company DEFENDANT-RESPONDENT Office of City Attorney Biondo Jr., Vincent F. 619-434-289] 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 City of Carlsbad DEFENDANT-RESPONDENT DOCKET ENTRIES 1 January 28, 1993 Notice of Appeal Lodged/Received. Filed January 4, 1993 By Thomas and Janet Mass 2 January 28, 1993 Notice Per Rule S 1 - With Reporter’S Transcript. 3 January 28,1993 Appellate Package Sent 4 January 28, 1993 Docketing Statement Filed : 5 March 9, 1993 | 70 Day Letter Sent (Rule 5.1). 70 Day Date Is March 14, 1993 6 March 15, 1993 Joint Appendix Filed. 3 Volumes of Joint Appendix 33 10 11 12 13 14 15 16 March 15, 1993 Appellant's Opening Brief Filed April 13, 1993 Respondents Brief Filed. As To Both Respondents April 13, 1993 a ae he ee To Be Assigned a A ae ke ok May 3, 1993 Appellant’S Reply Brief Filed. B L C - Local Rule 8 - End Notes In Brief May 4, 1993 Case Fully Briefed. May 4, 1993 Oral Argument Waiver Notice Sent. May 14th May 14, 1993 Request For Oral Argument Filed By: Appellant - 15 Min May 17, 1993 Request For Oral Argument Filed By: Respondent - 10 Min (City of Carlsbad) March 29, 1994 Change of Address Filed For: Counsel For Appellants April 4, 1994 On June Calendar. 34 17 18 19 20 21 22 23 24 April 4, 1994 Work, J. WTN April 28, 1994 Calendar Notice Sent. Calendar Date: Wednesday, June 8, 1g94 @ 1:30 p.m. WTN May 3, 1994 Received Letter From: Firm of Mc Donald, Hecht & Solberg - Richard A. Schulman of the Firm Handling Appeal June 8, 1994 Cause Argued and Submitted. WTN June 13, 1994 Change of Address Filed For: Thomas and Janet Mass June 17, 1994 Opinion Filed. We Affirm the Judgment, Except We Reverse the Court’S Grant of the Demurrer To That Part of June 17, 1994 Previous Entry Continued. The Second Cause of Action Which Alleges A Continuing and Temporary Nuisance Against June 17, 1994 Previous Entry Continued. Fieldstone During the Construction Phase of the Development, and We Remand This Matter For 35 25 26 27 28 30 31 32 June 17, 1994 Previous Entry Continued. Further Proceedings Consistent With This Opinion. The Parties To Bear Their Own Costs of Appeal. June 17, 1994 Previous Entry Continued. Work, Acting P. J., Todd, J., Nares, J. July 1, 1994 Rehearing Petition Filed. By Appellants July 6, 1994 Order Denying Rehearing Petition Filed. July 6, 1994 Answer To Rehearing Petition Filed. (moot) July 27, 1994 Record Transmitted To Supreme Court. 1 Volume July 28, 1994 Copy of Petition For Review Received August 8, 1994 Answer To Petition For Review Received 33 August 17, 199A 34 Telephone Conversation With Supreme Court - Jurisdiction Date Is Sept. 23, '94 August 18, 1994 Received Copy of Reply To Answer To Petition For Review 36 35 September 7, 1994 Petition For Review Denied In Supreme Court. Appellants Petition For Review Denicd. Order File Din This Court Onseptember 9, 1994 36 September 15, 1994 Record Retumed From Supreme Court. 37 September 26, 1994 Remittitur Issued. CASE DISPOSITION INFORMATION Disposition Date: June 17, 1994 Disposition: Affirmed/Part, Rev/Part, Remanded W/ Direction Opinion Type: Sign Npub Disposition Final: (Y = Yes - Blank = No) Y Notation: Work, Acting P. J., Todd, J., Nares, J. JUDGES PANEL INFORMATION Judge Name: Work, Don (J) Role: Active Judge Name: Todd, William L. (J) Role: P Voted: C Judge Name: Nares, Gilbert (J) Role: P Voted: C CASE NOTE INFORMATION NOTES: / F-6 37 FINANCIAL TRANSACTION INFORMATION 1 Receipt No:R405521 Void: Fee Type: F Filing Date: January 4, 1993 Attomey Sequence No: 1 Fee Status: A Pay/Waive Date: January 28, 1993 Debit Amount: .00 Credit Amount250.00 Pay Type: K Check No: 16-66/1220 NOTE: END OF DOCKET CARD INFORMATION FOR CASE NUMBER D018305 SUPREME COURT OF THE STATE OF CALIFORNIA ABSTRACT OF COURT DOCKET July 26, 1994 Petition for Review Filed August 8, 1994 Answer to Petition for Review Filed August 15, 1994 Reply to Answer to Petition for Review Filed September 7, 1994 In Bank - Appellants’ Petition for Review Denied, Justice Mosk, Acting Chief Justice 38 PART THREE LENGTHY QUOTATIONS IN SUPPORT OF JURISDICTIONAL ASPECTS OF THE F EDERAL Ill. IV. QUESTION INVOLVED Inverse Condemnation Statute of Limitations Denial Of The Civil Rights Cause Of Action §1983 Including Inverse Condemnation And The Cause Of Action For A Writ Of Mandate Based Thereon If Proceedings, Decisions And Laws Upon Which They Are Based Are Void For Any Reason, They Are Subject To Being Collaterally Attacked. In Such Cases, The Statute Of Limitations Is Not A Defense, Laches Maybe, Not The Statute Of Limitations As A Bar, Never Indemnity, Immunity And Intention Conflicts . Facts And Issues Amended And Supplemental Complaint Constitution Of The United States Is The Supreme Law Of The Land 39 I. INVERSE CONDEMNATION APPELLANTS' OPENING BRIEF At pages 2-26: Til. DISCUSSION A. THE TRIAL COURT ERRONEOUSLY SUSTAINED DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST CAUSE OF ACTION FOR INVERSE 1. THE COURT'S RULING (JA. 391) THAT "PLAINTI VIN RISE TO A CLAIM FOR INVERSE CONDEMNATION” THE CITY OF AN INVASIVE SERVITUDE PERMITTING ON ATION: D AIR T RENDER PLAINTIFFS’ HOME UNTENANTABLE. The United States Constitution, Amendment V, provides, "No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use without just compensation." The California Constitution, Article I, §19 provides, "Private property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner." The basic issues under these provisions involve three questions: has private property been "taken" or "damaged;” was it for a public use; and what is the value of the property so "taken" or "damaged" so as to provide the owner "fair compensation?” The constitutional policy is that injuries caused by public improvements should be spread throughout 40 the community rather than becoming a burden on the individual. It should be noted that the California Constitution requires compensation not only for "taking" of property, but also for the "damages to property. In general, the governmental activities which can interfere with or damage property interest are divided into two broad categories: those which are actually physical "taking", including constructive physical invasion or interference with property rights (nuisance-trespass, e.g., low-flying aircraft); and those which cause damage by excessive or improper restriction on property interest by regulations that go “too far" (e.g., economic effect). California cases have placed less emphasis on the technical aspect of the source of the invasion or interference of property and more emphasis on the nature and extent of the actual harm suffered by the particular plaintiffs relating to their loss of the use and enjoyment of their property and its diminution of value. The appellants have alleged in all of their complaints by well pleaded facts, all of the essential allegations necessary to state a good cause of action against the respondent-City for inverse condemnation. The complaints make clear that there has been a constructive physical "taking" or "damage" to appellants’ protectible property interest. That this "taking" or "damage" was the result of the respondent-City's activity, which was for a public use and purpose, which caused the physical invasion or interference with appellants’ property rights. The test to determine if the physical "damage" or "taking," constructive or actual, has been alleged, may from the cases herein identified be fairly summarized as follows: (a) substantial impairment or interference with the use and enjoyment of appellants’ property and a diminution in its value: or (b) substantial interference with appellants’ use and enjoyment OR a direct, peculiar and substantial burden on their property and an impairment of its value. The general rule announced in Holtz v. Superior Court of San Francisco, 3 Cal.3d 296, 303, 304 (1970) is that a property Owner may recover damages in an inverse condemnation case 41 where the physical damage is caused to his or her property by public improvements as deliberately planned and built, without proof of negligence, and whether or not such damage is foreseeable. There are two exceptions to the Holtz rule of absolute liability: "emergency use of police power" and a common law "right to inflict damages." Neither of these exceptions are applicable to the case at bar. In Varjabedian v, City of Madera, 20 Cal.3d 285 (1977) the Supreme Court states with respect to odorous air pollution in connection with inverse condemnation damages said, at p. 294: "{I)f the premises were uninhabitable and hence saleable only to an absentee farmer, it appears this factor would appropriately be considered by a prospective purchaser and could properly be included in the estimated decline in market value.” Similarly, a willing and informed buyer would be keenly aware of damage to market value brought about by the impact of the invasive noise, dirt, and noxious air due to the City's change of gate location. In Varjabedian the trial judge had given as his reason for denying just compensation the plaintiffs’ failure to allege "physical damage to the property" or a "trespass". In assessing whether the plaintiffs’ allegations served as a basis for inverse liability the Court, at pp. 296-297 (citing more than 15 separate authorities) used the following language which we set forth with citations eliminated: "In assessing whether plaintiffs’ allegations may serve as a basis for inverse liability, we note that physical damage to property is not invariably a prerequisite to compensation. Rather the determination of the scope of the just compensation clause rests on its construction "as a matter of interpretation and policy". The contending policies which guide that construction have often been described as follows: "on the one hand the policy 42 underlying the eminent domain provision in the Constitution is to distribute throughout the community the loss inflicted upon the individual by the making of public improvements...On the other hand, fears have been expressed that compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost." "Several factors present militate in favor of a distribution throughout the relevant community of the type of loss involved here. Plaintiffs' claim stems from the recurring violation of their property by a gascous effluent. As such, the injury is not far removed from those core cases of direct physical invasion which indisputably require compensation. Thus damage from invasions of water or other liquid effluents often provides the basis for inverse liability. Moreover, plaintiffs’ complaint which includes, inter alia, the claim that their land was made "untenantable for residential purposes” is Clearly sufficient to depict a permanent and “substantial impairment” in their use of the land." Of particular significance is the recent case of Harding y. iforni »» 159 Cal.App.3d 359 (1984). This Court dealt with the unique damages involved in a situation similar to the facts in the case at bar. In this case the Court of Appeal affirmed the judgment dismissing the nuisance cause of action against the City but reversed the summary judgment as to the cause of action for inverse condemnation. The Court held that the owners alleged unique damage to their property from the noise, dirt, dust, and debris, caused by the construction of a highway, and that therefore they should have been allowed to establish that they suffered a peculiar and substantial burden as a result of their proximity to the highway. On page 367 the Court concluded as follows: 43 "Thus, California Courts have extended the peculiar and substantial burden standard to airport noise cases and noxious odor cases. Both these classes of cases at one time required physical taking before compensation was allowed. People suffering damages from their proximity to a highway should not be unequally required to allege and prove a physical invasion." [Citations omitted.] At page 364 the court states: "No taking is required, rather, an action for inverse condemnation requires and invasion of property which directly, substantially, and peculiarly burdens plaintiff to his detriment. (Selby Realty Co. v, City of San Buenaventura (1973) 10 Cal.3d 110, 119- 120 [109 Cal.Rptr. 799, 514 P.2d 111].)" The court pointed out at page 365: Plaintiffs’ complaint stated that the prevailing winds collect all of the flotsam of the freeway and deposit it on plaintiffs’ property, this being the first open area along the easterly side of the embankment, and that plaintiffs are subjected to dirt, dust, debris and noise, and have lost their access to air, light and view, all making their property virtually untenable. (sic.)" After reviewing City of Yakima v. Dahlin (1971) 5 Wn.App. 129 [485 P.2d 628], the court stated at page 366: "The court found that even though there was no appropriation of property, construction of the overpass would create an echo chamber that would elevate noise levels on Dahlin's property to an intolerable degree.” In the Dairy, Inc. (imposition of a servitude together with construction), 77 Cal.App.3d 742 (1978), the Court, after reviewing the policy consideration on which inverse condemnation rests and what damages are not contemplated by the Constitution, states on page 756: "But where there has been a substantial impairment of the use which diminishes the market value of the property, compensation is constitutionally compelled." [Citations omitted. ] In Barnhouse y, City of Pinole (damage caused by the construction of a drainage system), 133 Cal.App.3d 171 (1982) the Court at page 197 states the following: “With regard to what a plaintiff must show in such a suit, the California Supreme Court has made the following comments: ‘The right assured to the owner by this provision of the constitution is not restricted to the case where he is entitled to recover as for a tort at common law. If he is consequently damaged by the work done, whether it is done carefully and with skill or not, he is still entitled to compensation under this provision.” [Citations omitted. ] The case of Smart v, City of Los Angeles (air craft noise), 112 Cal.App.3d 232 (1980), held that: “Plaintiff, although of course entitled to only one recovery, is entitled to several ‘bites off the apple’ and may proceed with various legal theories in his attempt to prove the City's liability for his damages. Likewise, damages recoverable by a plaintiff in a successful nuisance action for injuries to real property include diminution of the land's value as well as damages for annoyance, inconvenience and discomfort." [pages 239-240] [Citations omitted] The Court also stated that in inverse condemnation, each action must be examined on its own to determine what results 45 "justice and fairness" requires; and this is done by focusing on the actual impact of the govemmental activity upon the property owner's actual use to determine a taking [citations omitted] {pages 238-239]. Smith vy. County of Los Angeles (construction of road caused landslide), 214 Cal.App.3d 266 (1989), is authority for alleging a cause of action for nuisance and inverse condemnation based on the same facts and that damages should include plaintiffs' costs and that the Holtz exception has an extremely limited application. In Aaron y, City of Los Angeles (1974) 40 C.A.3d. 471; 115 Cal.Rptr. 161, the plaintiffs’ evidence proved a measurable reduction in the market values of their homes when noise from aircraft using the City airport caused substantial interference with the use and enjoyment of their property. The Court in commenting upon a landmark United States Supreme Court case, United States v, Causby (1946) 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, said at 477: "Although the flights did not completely destroy the enjoyment and use of the land, they were held to be so low and frequent as to constitute a direct and immediate interference with the full enjoyment of the land, limiting the utility of the land and causing a diminution in its value, and therefore constituted a taking under the Fifth Amendment." The Aaron Court then continued: "In Martin the court held that where the flights in question caused such interference with the use and enjoyment of the property as to result in a measurable diminishment in market value, the government and not the individual homeowner should be required to bear that burden." When the federal or state governments actually physically take private property and fail to provide the owner with just 46 compensation, the Courts historically have always provided the Owner a remedy. That body of law has not changed but has been extended to apply to a taking that is only a discreet part of the whole even if only temporary, and further, has extended recovery to include cases of "effective" physical appropriation, occupation, invasion of or interference, including air pollution, and thus constitutes a constructive “taking.” Loretto y, «+» 458 U.S. 419 (1982); Kaiser-Acina vy. US., 444 U.S. 164 (1979); First English Evangelical Lutheran Church, 107 S.Ct. 2378 (1987); Nollan vy, iforni ission 483 U.S. 825 (1987); U.S. y. Causby, 328 U.S. 256 (1946). The Harding case, infra, set forth the requirements for a cause of action at page 367. The allegations in Plaintiffs’ complaint as summarized in the above Summary Of Material Facts state a cause of action under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 19 of the Califomia Constitution. No regulatory taking such as is involved in zoning ordinances restricting the use of land is involved in the case now before the Court. every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” The Supremacy of the federal Constitution is acknowledged and confirmed by the California Constitution in Article III §1. 47 The language of the Constitutions prohibits the taking of private property for public use without payment of just compensation. The moment private property has been taken whether by formal condemnation proceedings, by physical invasion, regulation or occupancy -- the landowner has suffered a constitutional violation if compensation is not paid. 2. THE COURT'S HOLDING (J.A. 391) THAT PLAINTIFFS FAILED TO ALLEGE FACTS SHOWING THE LOSS OF THE PRIMARY USE AND VALUE OF THEIR PROPERTY WAS PATENTLY ERRONEOUS, IN ADDITION TO OTHER ALLEGATIONS THE PLAINTIFFS ALLEGED THAT THEIR HOME WAS RENDERED UNTENANTABLE. The court erroneously assumes that this is a regulatory "taking" case. Between the respondents it is. However, out of these proceedings "The City" effected a physical "taking" of the plaintiffs’ property. Accepting arguendo that the “taking” of plaintiffs’ property was effected by a regulation it still could pass that test and be a compensable "taking." The articulated guiding principles underlying the courts’ "taking" doctrine has been consistent and deceptively simple. The Court has repeatedly stated that the ultimate issue in a "taking" case is whether "fairness and justice" require that compensation be paid for economic injuries caused by the government. Pennsylvania Central Transport Co, v, New York City, 438 U.S. 104, 124 (1978) (Penn. Central). The court has formulated a series of tests to determine whether considerations of "fairness and justice" require that compensation be paid. These tests are used to provide a structure to review the particular facts of the regulatory "taking" to determine if there has been a compensable "taking" of a protected “property” right or rights. This doctrine requires the court to apply one of three major tests to determine whether governmental action other than a formal exercise of eminent domain power constitutes a taking: the three-factor Penn Central case; the two-part Agins test; and the Loretto per se rule. Between 1980 and 1987 in a number of taking cases that followed Agins, the court used a one factor test for a land use 48 a regulation that effects a taking on its face and that factor was whether the law "denies the owner economically viable use of his land..." The use of the "denial of economically viable use" test as the sole test was short lived. In 1987 the Keystone case "revived" the two-part Agins test. The use of the single factor test that the trial court used, would result in doing away with the concept of providing compensation for regulatory taking, and even physical taking, unless the claimant alleged loss of all use and value. The trial court with the use of this test would have even denied the Nollans recovery because they could not show the loss of their primary value and use by virtue of public lateral access between their sea wall and the high tide line. In effect, the use of the one factor test, would result in the California Courts retuming to their pre-1978 holdings that the owner's remedy was to declare the regulation invalid and not permitting an action for "just compensation," a result prohibited by our Constitutions. In addition, it was erroneous for the court to rule that it has not been pled that plaintiffs lost the primary use and value of their property when those actual words were used in the second amended complaint and supported by the facts alleged in the first cause of action (J.A. 256: 11-24) (J.A. 253: 14-18) (J.A. 255: 9,10) (J.A. 258: 5-9; 21-23). Referring to plaintiffs’ first cause of action in the second amended complaint, the court ruled (J.A. 391) "A temporary injury resulting from actual construction of public improvements is generally noncompensable" (Citing, People ex i (1960) 54 Cal.2d 217, 228]. In reviewing the allegations contained in the complaint and cause of action referenced, we have found not one allegation 49 asserting a temporary injury resulting from the public improvements referred to in the court's ruling. It is true that at page 228 of the opinion in the Ayon case the court clearly states that "Temporary injury resulting from actual construction of public improvements is generally noncompensable.” However, on the same page the court points out "It is true that damages resulting from unnecessary and substantial temporary interference with the property owner's rights in the property may be compensable.” Regardless of this quoted language there is no issue raised in the first cause of action which has to do with this question. The "taking" which results from "The City's” traffic management plan to divert traffic was not even considered by the respondents or the lower court. It must be patently apparent that the injuries caused by the traffic diversion plan will be continuing and permanent (J.A. 265). In any event, in light of the First English Evangelical Lutheran Church v. County of Los Angeles (107 S.Ct. 2378, 482 U.S. 304 (1978)) holding that even a temporary taking must be compensable, the Ayon case is suspect and must be reexamined. The sole function of a demurrer is to test the sufficiency of the pleading it challenges. A general demurrer admits the truth of all factual material allegations properly pleaded, as well as the facts essential to a cause of action which the facts alleged supply by implication or inference. Harvey vy. Holtville, 271 Cal.App.2d 816, 819 (1969). The defense that an action is barred by the statute of limitation may be raised only when the ground of the objection appears affirmatively on the face of the pleading or from matters of which the court must or may take judicial notice. CCP. _§430.30(a); Basi nt of Water and Power, 199 Cal.App.3d 819, 821-823 (1988). A full and fair reading of the inverse condemnation cause of action demonstrates that nowhere therein does it appear affirmatively on the face of the complaint, or from matters of which the court must or may take judicial notice that the right of action is necessarily barred (J.A. 1: 1-42). Pulver v. Avco Financial Services, 182 Cal.App.3d 622, 635 (1986); Valvo v. i i ia. 67 Cal.App.3d 887, 895 (1977). On the facts alleged, no way does it appear affirmatively that the cause of action for inverse condemnation is necessarily barred by the statute of limitations contained in §66499.37. Because of this fact it was not necessary for appellants to anticipate defenses in avoidance and in bar of the appropriate statute of limitations. Sullivan v. Shannon, 25 Cal.App.2d 422 (1938); Heyer v. Flaig, 70 Cal.2d 223, 230 (1969). (b) That_based on the facts well pleaded and the clear iudiciall lied 1 Terry (1) Objections to defendants' legal argument hict | thi he fi f the j condemnation cause of action In an inverse condemnation cause, the action must be filed within three years of the discovery of the damage wt aay yt SL) OA La aa I. INVERSE CONDEMNATION vs. CITY To state a cause of action for inverse condemnation, the complaint must allege facts to show: (a) taking; (b) for public use Or purpose; (c) private property; (d) without just compensation. The Harding case! is substantially the same in all material respects. It is controlling. Appellants’ Complaint complies with its requirements. Subject Appellants’ home is private property The City is a public entity. Fieldstone’s original plan and its application requested the access to its subdivision be located on Alicante Road The access was changed by the City to Corté de la Vista “for traffic safety purposes.” The relocation of “the gate” was the means the City used to regulate traffic. The relocation of “the gate” was based on consideration of public safety for the public at large, “and not for any private purpose or use.” Citation 2(J.A. 250:24- 28); 251:1-2) 2(J.A. 2:22-24) 2(J.A.:13-15) 2(J.A. 252:13- 26) 2(J.A. 253:4-28; 254: 1-8) 2(3.A. 253:4-8) 1 Cases that have been cited in the Petition For Rehearing will be cited herein as if this Petition is merely a supplement to it with newly developed and discovered material. 100 “The City’s” requirement that “The Developer” relocate the access to the project for ingress and egress (“the gate”) (N.B. “the gate” is shorthand for the relocation of the access for public safety. “The gate” was for the express purpose of regulating traffic, and as such, serves a public purpose and use.” Traffic regulations was the public “improvement.” The act of relocating “the gate” directly and wrongfully diverted the heavy traffic from Alicante Road and re-routed it to Corté de la Vista thereby increasing, unreasonably and excessively, the volume of traffic, and destroying the residential environment of the plaintiffs’ home. “The gate” will be constructed in its new location by “The Developer” as authorized and directed by “The City” and subject to its approval, and said gate will be accepted by “The City” by “The City’s” integrating “the gate” into its public roadways. That both Alicante Road and Corté de la Vista are public improvements and part of the public roads owned and maintained by “The City.” The relocation of “the gate” by “The City’s” affirmative action was not only by its substantial participation, but the sole and direct cause of creating and causing the condition that will result in the damaging and/or taking plaintiffs’ property by the trespass, nuisance and air pollution more fully described elsewhere in plaintiffs’ complaint. 101 2(J.A. 253:9-10) 2(J.A. 253:10- 13) 2J.A. 253:13- 14) 2(5.A. 253:14- 22) 2(5.A. 253:23- 28; 254: 1-2) ee a Se ee eee As a direct result thereof, the flow of traffic will all enter and exit on Corté de la Vista which is a public street and not a private driveway, and integrated into the public streets on the admitted grounds for the public safety of the community as a whole and will dramatically and adversely increase the volume of traffic and change the residential environment. That “The City’s” taking is official governmental action ...” As a direct and necessary result of the aforesaid governmental action, the noise, dirt, odor, air pollution, flashing headlights and vibrations cause, and will continue to cause, a substantial interference with the use and enjoyment by plaintiffs of plaintiffs’ homes, the loss of reasonable investment-backed expectations, and a diminution in its primary use and value. Plaintiffs have received no compensation for their damages, nor has “The City” instituted eminent domain procecdings. Deprivation of Appellants’ constitutional rights. “The City,” by its decision and failure to justly compensate the plaintiffs, has deprived the plaintiffs of their constitu-tional right to a jury to determine their damages. 102 2(J.A. 254:3-8) 2(J.A. 254:27- 28) 2(J.A. 255:4-10) 2(J.A. 259:3-5) 2(J.A. 259:6-12) 2(J.A. 259:13- 16) Il. NEGLIGENCE vs. FIELDSTONE Both causes of action against Fieldstone are based on negligence, causing pollution and nuisance-type damages. The essential elements that must be alleged in the Complaint are: duty; breach of duty; a causal connection between the acts and/or omissions and the damages; and damages. Appellants’ Complaint satisfies these requirements nor has any issue been raised as to their adequacy. The Respondents and the Court’s sole defense relies on the Civil Code section 3482. Said section provides, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” The statute cannot be read without viewing it with the “judicial gloss” that has been added. Courts have severely limited the application of the statutory immunity by holding that it cannot be pleaded in justification of acts which would otherwise constitute a nuisance unless the act is authorized by the express terms of the statute relied on, or, “by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very acts which occasions the injury.” Hassell v, San Francisco (1938) 11 Cal.2d 168, 171. To say that the Subdivision Map Act, by its “express terms” authorized the City to unlawfully engage in traffic management without jurisdiction and provide Fieldstone (not in privity with the City) with a statutory immunity is contrary to the letter and spirit of the Hassell case. A fair reading of the statute does not permit this result nor does Fieldstone have any standing to invoke this immunity. Based upon the allegations in the Complaint, this defense cannot be raised by demurrer. The manner in which the acts and omissions occurred and the nature and extent of the injuries to Appellants are not only unreasonable and as a result negligence, but they were wiliful. Lach Superior f Oran County (1991) 230 Cal.App.3d 1038. 103 Subject May 10, 1990, notice given to Fieldstone of objections to “relocation of gate.” Fieldstone did not object to the “relocation” or pursue remedy. Fieldstone’s negligent manner. Site construction to take a year and thereafter several years to complete the project. Site construction damage to end; the damage due to the increased volume of traffic will be continuing and permanent. The volume of traffic will increase over 1,300 “trips” a day, funneled to a point across the street from Appellants will directly cause Appellant unreasonable damages. The view and ocean breeze is still there but cannot be enjoyed. The nuisance is based on fault is unreasonable. Fieldstone’s acts and omissions causing the pollution and nuisance damages described with evidentiary detail in the Complaint was willful, oppressive and malicious. Section 3482 of the Civil Code does not provide a statutory immunity to Fieldstone for their unreasonable acts and damages to Appellants. 104 Citation 2(J.A. 262:5-12) 2(J.A. 262:13- 23) 2(J.A. 262:24- 27) 2(J.A. 264:14- 20) 2(J.A. 264:26- 28; 265: 1-2) 2(J.A. 265:13- 28) 2(J.A. 266:4-13) 2(J.A. 267:9-12) 2(3.A. 267:26- 28; 268: 1-3) 2(J.A. 269:15- 2A) Ii. WRIT OF MANDATE vs. CITY A. Federal Civil Rights Violated In the case of Gomez v. Toledo (1980) 466 U.S. 635, the court stated on page 577: By the plain terms of §1983, two -- and only two -- allegations are required in order to state a cause of action under the statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe vy. Paper, 365 U.S. 167. Subject Citation “Plaintiffs are citizens of the United States...” 2(J.A. 395:6) “The City is a public entity...” and as such, is a 2(5.A. 396:4,5) person under the civil rights law. The City acted under color of state law. 2(J.A. 397:10- The Public Hearing was a sham. am 399: 10- One-sided hearing. a .A. 400:19- The notice to the multi-faceted hearing was o A. 404:20- defective; neither the hearing or the notice 24) conform to the standards of the “due process” Clause of the Federal or State constitutions. Appellants were deprived of their Federal “due 2(J.A. 404:25- process” and “equal protect” rights under the 28; 405: 1-26) Federal Constitution. 105 ee a » “es ct aly bene sh tien acti te Mika te Appellants did not receive reasonable notice or opportunity to be heard prior to the deprivation of its property rights and in violation of its civil rights. Appellants’ property and civil rights were denied them in violation of the City’s duty. The violations of Appellants’ rights were caused by the City’s acts and omissions under color of law and in violation of their constitutional rights. The City acted under color of state law and violated Appellants’ rights as aforesaid causing Appellants damages and said acts are not isolated. Appellants’ right to possession and use of their property is based upon the positive law of California (see A.R.B. 13-17) and provides the substantive bases for its claim under the civil rights remedies law. Requirements for approval of the final map, makes it clear that the proceedings are adjudicative in nature. Appellants were not parties to the proceedings between the Respondents. The decision to divert traffic was in excess of the City’s jurisdiction, counter-productive and inconsistent with the general, special and circulation plan. 106 2(J.A. 408:21- 2A) 2(J.A. 411:3-12) 2(J.A. 412- 414:1-18) and 1(J.A. 415:4-21) 2(J.A. 416:7-28; 417, 418:6-26) 2(J.A. 411:10- 12; 412-415:1- 21) 2(3.A. 408- 409: 1-20) 20.A. 409:26- 28) 2(.A. 410:17- 28, 411) The City’s diversion and funneling the traffic of 2(J.A. 415- the 132 project denied Appellants of their civil 418:1-18) and property rights. The City notice and agenda are prima facie 2(J.A. 426-427) evidence that the notice and hearing did not meet constitutional “due process” and “equal protection” standards. B. California, Constitutional Based, Abuse Of Administrative Proceedings. California Civil Rights, also includes the right to be free from arbitrary adjudicative procedure (Appellants’ Reply Brief 29-35). The law is set forth in Appellants’ Reply Brief, pages 29-35. The facts to establish this cause of action will be found in the Complaint. More particularly, without limiting the generalities of the foregoing, see immediately hereafter, part III. C., the references to the facts in the Joint Appendix. It will show that Appellants have alleged that: “Respondents have proceeded without or in excess of jurisdiction”; have denied Appellants a “fair trial”; and has been guilty of “prejudicial abuse of discretion.” C. Writ of Mandate for Review of Adjudicative Administrative Proceeding and for an Order to Set Aside the Decision. Subject Citation Tentative map approval was conditional and 2(J.A. 400:26- subject to the requirements of the final map, both 28, 401:1-7) of which j ired “discretion.” 107 The City ordinance made it mandatory for them 2(J.A. 397:23- to provide a notice and hearing where you “shall 27); 2(J.A. be heard” and “discretion” shall be used. 398: 1-13) DESCRIPTION OF THE HEARING 2(J.A. 399- 407:1-10) THIS CONCLUDES APPELLANTS’ ABSTRACT OF THE KEY PROVISIONS SUPPORTING THEIR CAUSES OF ACTION. APPELLANTS' PETITION FOR REHEARING At pages 18-23: Ill. THE COURT OWING TO A MISTAKE OF LAW AND A MISUNDERSTANDING OF THE FACTS, ERRED IN REVIEWING THE TRIAL COURT’S ORDER SUSTAINING THE DEMURRER TO APPELLANTS’ COMPLAINT FOR A WRIT OF MANDATE CAUSE OF ACTION RESULTING IN AN INJUSTICE TO THE APPELLANTS C. The Federal and State civil rights’ Causes of Action, having been addressed in Appellants’ Opening Brief at 33-34, 34-37, and Appellants’ Reply Brief at 27-33, as parts A and B, III of this Petition, Appellants will not repeat them. The Court failed to address Appellants’ civil rights Causes of Action, based on California law, except inferentially based on its reasons for concluding that Appellants’ Causes of Action based on federal law were defective. Assuming, arguendo, that this is the case, it would still be prejudicial error because the federal Civil Rights law is not coexistential with Califomia’s law 108 in this regard. People v, Ramirez (1979) 25 Cal.3d 260; City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400. It should be plain because it is explicit, that Appellants are not claiming the denial of zoning rights but “fundamental” vested, compensable property, and civil, and constitutional rights. This is also another example of Respondents’ “facts” being in lieu of the facts in the Complaint. The Court’s opinion on the bottom of page 16 and the top of page 17, demonstrate the results of using the wrong and impermissible “facts.” Respectfully, Appellants bring to the Court’s attention their objection to the Court’s opinion relating to the Third Cause of Action, a Writ of Mandate, which is the Third Cause of Action, included in Count III of the Complaint. To the extent that the Court relies on the statute of limitations defense to support its opinion, “that the statute of limitations is applicable to Appellants’ claims and that they have no basis to bar its operation,” Appellants incorporate by reference their defenses in bar to the statute of limitations herein set forth. Judicial review of the administrative decisions of the City is provided for in §§1094.5 and 1094.6 of i j Civil Procedure. It provides for, in substance, the Court to make inquiries whether the Respondents have proceeded: (a) without, or in excess of its jurisdiction; (b) whether there was a fair trial; and (c) whether Appellants received a fair trial. It goes on to say, “Abuse of discretion is established if the Respondent has not proceeded in the manner required by law....” Because the case involves Statutory construction of both jurisdictional and constitutional facts and further because Appellants are a “suspect class” and review involves not evidence but a demurrer, which assumes the facts to be true, the review should be de novo and the exercise of independent judgment on the “admitted” facts. Based on this criteria and standard of review, the undisputed facts will show that the City must be ordered to set aside its decision. Poway v. City of San Diego (1991) 229 Cal.App.3d 847; Selinger v. Redlands (1989) 216 Cal.App.3d 259. 109 The traffic regulation adopted by the City for public safcty is null and void because it acted without jurisdiction and it is in conflict with the general plan, specific plan and its “circulation element.” This Court held in Carstens y, City of Del Mar (1992) 8 Cal.App.4th 1642, 1653, in substance, that the state has preempted the field of vehicular traffic regulation and as such has no authority over vehicular traffic control unless provided for exceptions in Vehicle Code §§21100-21116. There is nothing in the record to support that the City acted pursuant to such delegated power, (and if they did, it could not be raised by a general demurrer). Further, the Complaint supports the conclusion that they invoked no exception and acted without any justification. The Subdivision Map Act cannot be construed as an amendment to the Vehicle Code, which by its terms must be strictly construcd. Lacher v, Superior Court of Orange County (1991) 230 Cal.App.3d 1038, Lesher y, City of Walnut Creek (1990) 52 Cal.3d 531. The Court is requested to take judicial notice of the City’s Municipal Code and its ordinances. The City has not made any amendments to its General Plan and its specific Circulation Element relating to traffic since 1985. The Circulation Element classifies Alicante Road as a secondary arterial street, designed for a volume of traffic between 5,000 and 20,000 average daily trips. Corté de la Vista is classified as a local street ending with a cul-de-sac designed to handle no more than 500 average daily trips. This record shows that Fieldstone’s subdivision will tripic that number by the City’s “traffic” easements as alleged in the Complaint 2 (J.A. 265) and is on its face, inconsistent with the General Plan and its specific Circulation Element. Even if the City had jurisdiction to engage in traffic regulation and complied with the appropriate procedures, it would have to be disapproved for failure to meet the requirements in Government Code §§66473, 66473.5 and 66474. Specifically, it is inconsistent with the City’s General Plan and the related Circulation Element, and so is the design and improvements of the subdivision. Further, as alleged in the Complaint, the traffic will cause substantial environmental damages and cause health and safety problems. This being the case, the City, by virtue of 110 the above sections, as well as §20.16.020 of the City Code, must disapprove the traffic regulation. It is mandatory. It is also a clear case of abuse of discretion. The Complaint alleges facts to show that the City acted: (a) without or in excess of its jurisdiction; (b) did not provide the Appellants with a fair trial; and (c) abused its discretion by not proceeding in the manner prescribed by law. Government Code §§65860(a)(ii) also provides that all ordinances must be consistent with its General Plan and the Specific Plan. Also §65353 of the same code requires a notice (§65091) and a hearing to amend the General Plan and a “$65091(a)(3) notice” if it affects the permitted use of the real estate. The City’s action was not authorized under the Government Code or the Vehicle Code and is void. The Vehicle Code also has mandatory requirement for notice and hearing. The Writ of Mandate is the appropriate remedy. Section 65860 of the Government Code does not permit a Court to rescue a zoning ordinance that is invalid ab initio. The Court should enter an order to issue a writ of mandate to compel invalidation. (The following additional citations are not necessary for the Court’s consideration but are included for the Court’s convenience.) Rumford vy, City of Berkeley 91982) 31 Cal.3d 545; Poway vy. City of San Diego (1991) 229 Cal.App.3d 847; Uhler y. City of Encinitas (1991) 227 Cal. App.3d 795; and the following Attorney General’s opinions relating to the issues: 68-101 (1985), 68-108 (1985), 75-80 (1992), 56-274 (1973). The Court having read Appellants’ briefs, knows that it corroborates what has been said in this section of the petition (Appellants’ Opening Brief at 34-38) and (Appellants’ Reply Brief at 24-36). It also supports Appellants’ allegations that the City, without jurisdiction in the fundamental sense as well as in excess Of their jurisdiction because of the fatal flaws in the necessary proceedings, which was an abuse of discretion and not a fair trial. It was not a trial at all, it was a sham and a shame! 111 3 : 4 : § q PETITION FOR REVIEW OF DECISION BY THE COURT OF APPEAL FOURTH APPELLATE DISTRICT [DIVISION ONE] FILED JUNE 17, 1994 At pages 17-18: C. THE COMPLAINT STATES THREE GOOD CAUSES OF ACTION IN ITS COUNT III AGAINST THE CITY, BOTTOM ON THEIR ABUSIVE "TAKING" AND DEPRIVATION OF APPELLANTS' EQUAL PROTECTION AND DUE PROCESS RIGHTS. 1. Federal civil rights action alleges that the City deprived the Appellants of a federal right under the color of law. 2. The California civil rights action: a. Alleges that Appellants were subjected to "deprivatory governmental action" which deny them their "due process" liberty interest both in a fair and unprejudicial decision-making and with being treated with respect and dignity; "The right to be free from arbitrary adjudicative procedures"**. b. The California law does not even require the showing of a property or liberty right in its initial due process analysis; 3. The Complaint for a writ of mandate seeks review of the administrative proceeding based on the deprivation of their constitutional rights: a. The City acted without jurisdiction, unfairly and abusively: (1) Abusive taking of an interest in their property without compensation; (2) Denial of procedural due process; (3) Denial of substantive due process; ** Footnote omitted in printing. 112 : f- 3 J (4) Denial of equal protection of the law; and (5S) Denial of their civil rights guaranteed under both federal and state constitutions as fully set for in the Complaints. b. The courts failed to use and apply the correct standard of review as to adjudicative, administrative tribunals®. c. The courts also failed to use and apply the correct standard of review to determine if the demurrers were sustained erroneously or, if in sustaining the demurrer without leave to amend, was an abuse of discretion’. Authorities in support for this heading and its subheadings are grouped together here for the Court's convenience’. 4 6 Footnote omitted in printing. 7 Footnote omitted in printing. 8 Footnote omitted in printing. 113 REPLY TO ANSWER TO PETITION FOR REVIEW At pages 4-12: Il. THE LOWER COURTS IN THIS CASE OWING TO A MISTAKE OF LAW AND MISREADING OF THE FACTS COMMITTED PREJUDICIAL ERROR IN THE SELECTION OR APPLICATION OF THE STANDARD OF JUDICIAL REVIEW OF ADJUDICATIVE ADMINISTRATIVE PROCEEDINGS A. Section 1094.5(b) is the Applicable Standard for Judicial Review of Adjudicative Administrative Proceedings. The city expanded the traditional items covered in this SMA proceeding. When their conduct threatened the appropriation of a traffic servitude on adjoining property, the law imposed upon them to employ due process requirements which they failed to do. While also engaged in traffic control, they thereby again, imposed upon themselves the duties and limitations of the applicable law in connection with traffic regulations and that they be consistent with their general plan, etc. Judicial review under Code of Civil Procedure section 1094.5(b) is the applicable standard for the courts review the adjudicative administrative proceeding conducted by the City herein, in connection with Fieldstone’s application for the approval of their proposed subdivision plan. Neither the remedy nor Appellants standing have been questioned, nor well can they. C.C.P. §1094.5(b) provides for in part: The inquiry in such case shall extend to the question whether the respondent has proceeded without or in excess of jusisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discre-tion. Abuse of discretion is established if 114 respondent has not proceeded in the manner required by law.... There are four basic procedural requirements that must be alleged to state a good cause of action for a writ of mandate, and Appellants have alleged them. Namely, they are: no plain, speedy, and adequate remedy; Respondents have a present duty to act; Appellants have a clear, present, beneficial right to relief, and the exhaustion of administrative remedy to the degree possible. Thus, the courts have been directed to search the administrative proceedings to determine if: they acted without or in excess of their jurisdiction, did they provided a "fair trial,” and did they abuse their discretion by not following the law. The depth of this search spans the total spectrum from “substantial” evidence rule, by supporting the decision with the use of the strict scrutiny rule, an independent judicial review as if in a trial de novo. In the case at bar, it is not subject to debate that Appellants have alleged the unconstitutional taking of their property and the deprivation of their human rights. Also, there cannot be any argument that these rights, as alleged in the Complaint, are "fundamental vested rights," and as such, demand the "strict scrutiny” test and then some, because the Appellants are part of a "suspect class." Adjoining property owners have not had the benefit of the equal protection of the law. The adjudicative administrative proceedings in this case presents a clear case of a government agency going completely overboard. They have in their acts and omissions exceeded and acted without jurisdiction, the trial was not fair, nor a trial at all, and they violated the law across the board. The record also makes it painfully apparent that Appellants were substantially and significantly deprived of their fundamental rights and that it had a vital impact on ther: as individuals as well as the class which they are part of. The leading cases supporting these propositions are: i i (1983) 33 Cal.3d 392, 395; i 115 Association (1974) 11 Cal.3d 28; and Bixby y. Piemo (1971) 4 Cal.3d 130, 143. The case at bar shows no evidence to indicate that the trial court and court of appeal made any independent judicial review of the administrative proceeding that they were to examine with strict scrutiny. B. The Facts Well Plead are "Admitted" Including the Exhibits. Where, as in this case, the courts must make an independent judicial review, with strict scrutiny, the procedural device of a demurrer does not present law point exclusively as it does in the ordinary civil action. Sears Roebuck & Co. v, Walls (1960) 178 Cal.App.2d 284, 288. In addition to all well-plead facts in the Complaint being admitted as true, it also assumes they are true and provable. The Complaint has also incorporated by reference unambiguous written documents of the City. There are three that merit particular attention, namely: (1) the City's Notice of Public Hearing, Exhibit "C" 2(J.A.:426); (2) the City's Agenda for the meeting, Exhibit "D" 2(J.A.:427); and (3) the City's Minutes of the meeting, Exhibit "E" 2(J.A.:429, 432). Even without reading the Complaints herein and only spending one minute reading Respondents’ own documents, Exhibits C, D and E, the following conclusions will be found to be supported by the facts in the record. 1. The City did not have, nor did it acquire, jurisdiction over Appellants or their property in the SMA proceeding. 2. The notice and the “hearing” in reality, a "town hall mecting" and attending and speaking at said meeting, do not meet the due process requirements of the Horn court. The Hor court on page 617 says: "that the notice must at a minimum be reasonably calculated to protect their interest." On page 620, it concluded, "the notice received by the plaintiffs obviously led to no meaningful vindication of his due process rights." The Agenda (Exhibit "D") entitled "Meeting" and not hearing or trial, shows on its face, that this was at best a "town 116 eee i hall" type meeting (and one that was tightly controlled). The Hor opinion on page 619 states what they think about this type of "hearing": “The C.E.Q.A. procedures are intended only to make and record a public response limited to general environment aspects of a proposed project. In order to satisfy the due process requirements, it is necessary to have a hearing where specifications to the threatened interference with the property may be raised. “In a predeprivation hearing, it would be reasonable and necessary to have expert testimony from environmentalists as is the nature and extent of the impact and also a real estate expert appraiser to give their opinion as to the effect of this threatened interference on the market value of the property in question. The court is requested to note from page 5 of Exhibit "E" (2(J.A.:432)] the type of general opinion that was requested and permitted. As the Horn case points out on page 617, "that this type of meeting cannot focus on the individual concerns of persons who are peculiarly and directly affected." The court of appeal disposed of Appellants’ Complaint for a writ of mandate on page 15 holding, "Thus, to the extent they have been deprived of a significant property interest, they received sufficient notice and opportunity to be heard." The court then went on to exasperate this startling conclusion by citing the Hor case. The Horn case is very much like the case at bar in all material respects. However, the evidentiary facts in the case at bar establish beyond a reasonable doubt that the process Appellants received was the antithesis of the due process Criteria articulated by the Horn court. The Horn court also puts to rest Respondents’ often used argument that the "statute so provides” by saying at page 616 "... the due process requirement discussed herein are not rooted in the statute but are compelled by a stronger force of constitutional principle.” These and other putative defenses of the Respondents cannot be raised by a demurrer. They are affirmative defenses. Further, the City can no more deny their own documents any more than they can impeach their own witnesses. They ought to be estopped from offering “proof” that contradicts their own 117 documents. A pre-deprivation hearing requires nothing less than a judicial due process hearing. In passing, their argument that the taking in this case is a private taking, is expressly refuted by Exhibit E, page 2 [2(J.A.:429)], wherein the City's employee testified that: "The Original proposal came in with an access off Alicante Road; however, for traffic safety purposes, staff requested that the entrance be moved to Corté de la Vista." How can it be argued, (and successfully too?) that "traffic safety purposes” is not a public use and purpose on public streets and central to the governmental improvement. How, indeed, can this whole judicial review proceeding be said to comply with the correct standard of the scope and depth that must be accorded to these proceedings. Not only did the administrative agency go astray, but the courts failed in their judicial review. Not only does the City's employees testimony establish conclusively that the taking was for a public purpose (and admittedly for a laudable purpose) but is also establishes that the city did indeed, engage in the regulation of traffic. Appellants’ complaints and exhibits establish, without being contradicted, that the City acted without and in excess of its jurisdiction by engaging in vehicular traffic control being expressly prohibitcd by the terms of the California Vehicle Code §21. Rumford v. City of Berkeley (1982) 31 Cal.3d 545. Only if the City could show by an affirmative defense that they acted within an express exemption in the statute, which they have not done nor can they.4 The Complaint states that they failed to provide the appropriate notice and hearing, to provide a trial at all, and further abused their discretion by not following the law. This 4 California Vehicle Code §§21, 2100-21116 et seq. and §§22, 627, 21102, 21111, 22352 and 22357; Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 794; Los Angeles v, So, Calif, Building & Loan Assn, (1961) 188 Cal.App.2d 850, 855. In addition to the notices and hearing required by the Traffic Code, the change in the traffic required an amendment. 118 was repeatedly called to the attention of the court and yet their judicial review failed to have them set aside the proceeding as being null and void. The courts, as well as Respondents, just completely ignored these and other like objections to the general plan. This also, in turn, requires notice and at least one more public hearing.° Lastly, Government Code §66499.37, being a truncated, non self-executing, statute of limitations, that bars claims and therefore, notice of it must be given, and if not, it is unconstitutional on its face and as applied. In light of Tulsa v. Pope (1988) 485 U.S. 478, haw can the court of appeal say that this objection is “without merit"? The standard of judicial review, explicitly codified by C.C.P. §1094.5(b) was either ignored or not correctly applied in this case. Til. THE LOWER COURTS IN THIS CASE OWING TO A MISTAKE OF LAW AND MISREADING OF THE FACTS COMMITTED PREJUDICIAL ERROR IN REVIEWING THE GENERAL DEMURRER A. Generally. The recent case of Yee v. Auburn (1992) 3 Cal.App.4th 771, provides us with a current and clear statement of the law for the judicial review of a demurrer to a cause of action for inverse condemnation.® B. Review of a Federal Cause of Action. In Bach y, County of Butte (1983) 147 Cal.App.3d 554, the court also clearly and concisely sets forth the standard of review 5 Government Code §65353, §§65090-65092, 65354.5, 65355, 65318, 65919, 65357; 65858, 80 Opinion of Attorney General 310 (1983), 65862, 65303, and 65302(b). See also, Guardians of Turlock's Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584, 592, 593; Friends of "B" Street v. Hayward (1980) 106 Cal.App.3d 988, 999; Save El Toro Assn, v, Days (1977) 74 Cal.App.3d 64, 72, 74. 6 Eldridge v. City of Palo Alto (1976) 57 Cal. App.3d 613, 632. 119 of an action based on federal statute or constitution. The state must look to federal law to determine what conduct gives rise to an action. The general rule is that state law controls in matters of practice and procedure; however, a "federal right cannot be defeated by the form of the local practice." | C. Federal Cause of Action Which is Based on Claim of Deprivation of Constitutional Rights Under Color of State Law Requires the Application of Federal Law. Whereas in this case, the Complaint sets forth several causes of action based on section 1983 et seq. of the Federal Civil Rights Act and the Fifth and Fourteenth Amendments which are designed to serve as an antidote to discriminatory state laws, federal law shall be used to test their adequacy. In order to protect federal rights where state processes are available in theory, but not in practice, the application of federal law is mandatory.’ Where, as in this case, the Complaints set forth in Count I claims based on Appellants’ state and federal constitutional rights that prevent the taking of their property without compensation; and where as in Count III, Appellants based on State and federal law and constitutions, claim the wrongful appropriation of their protected property rights and the deprivation of their human rights which denied them due process and equal protection of the law; and where as in Count IV, containing their Amended and Supplemental Complaints against the City for the deprivation of rights under color of state law [42 U.S.C. §§1883, 1985, 1986 and 1988]; and, lastly as in Count V, their complaint against Fieldstone for the same deprivation as aforesaid, the courts failed to exercise the judicial review required under the law for these type of violations of Appellants’ constitutional rights 3(J.A.:542-560; 560-576). While due process is not in all cases judicial process, where constitutionally protected rights are involved, judicial review must be exercised over administrative proceedings to insure that no citizen is deprived of their liberty, property or property 7 Williams v. Horvath (1976) 16 Cal.3d 834, 837, 841. 120 rights. It is a matter of common knowledge which the Court should take judicial notice, that Local administrative tribunals have become insensitive to the fact, that pressure from special interest groups is inconsistent with the proper function of their quasi-judicial capacity and function. 121 IV. IF PROCEEDINGS, DECISIONS AND THE LAWS UPON WHICH THEY ARE BASED ARE VOID, FOR ANY REASON, THEY ARE SUBJECT TO BEING COLLATERALLY ATTACKED. IN SUCH CASES, THE STATUTE OF LIMITATIONS IS NOT A DEFENSE, LACHES MAY BE, NOT THE STATUTE OF LIMITATIONS AS A BAR, NEVER. APPELLANTS' PETITION FOR REHEARING At pages 23-27: IV. THE “NOTICE AND HEARING” GIVEN TO APPELLANTS IN RE: THE TENTATIVE MAP APPROVAL PROCEEDINGS ARE FATALLY CONSTITUTIONALLY FLAWED From the hearing had and the one and only notice that Appellants received was ostensibly a public hearing, “town hall” type for the approval of Fieldstone’s tentative map. The Appellants were not applicants or parties, but appeared as “witnesses” for the City’s benefit to be better able to make an informed decision 2(398:10-26); 399; 400, 401:1-10). The notice was defective 2(426, Exhibit C). Its only caveat: if you challenge the tentative map in Court, you may be limited to the issues raised. Note that it does not limit the issues you may raise in the proceedings relating to the final map approval or claim to be res judicata. To non-parties, this would also be so by operation of law 2(403:9-28; 404:1-19). So far, not so bad. Now, and without further adieu, the Respondents argue that in the “town hall” type meeting, they have provided Appellants with a pre-deprivation hearing, a 122 hearing adopting new traffic regulations and a hearing to amend the General Plan, the Specific Plan and the Circulation Element. Further, the one notice for the public meeting satisfies the requirements for these three other hearings; and what’s more, it satisfies the notice requirement necessary for the truncated statute of limitations to be constitutional. They argue that the one notice for the public meeting satisfies the requirements for these other four notices. Because in theory it is possible that one notice could, in fact, provide a person adequate notice to five or more purposes, we must tur to a copy of said notice 2(426, Exhibit C). From its examination, it is palpably apparent that the notice is deficient for the following reasons: (a) as for a notice for the public hearing as hereinabove set forth; (b) as to the notice to regulate traffic, it fails to meet the requirements of the California Vehicle Code §§21, 21100 et seq. and/or the California Administrative Procedure Act, Government Code §1150(b); (c) as for the notice required by Government Code §§65300 et seq. for amendments of the general plan; (d) as for the notice for the predeprivation proceedings, the Horn case, infra, states on page 617, ...prior notice of a potentially adverse decision is constitutionally required, that notice must, at a minimum, be reasonably calculated to afford affected persons the realistic opportunity to protect their interest. “It is submitted that Exhibit “C” is inadequate”; (e) as to the notice necessary to make a truncated statute of limitations that is a non claim, non self-executing statute, as in our case, and as such, requires actual notice of that fact to be given to Appellants, the notice is silent. Therefore, it does not satisfy the due process requirement. Tulsa v. Pope (1988) 485 U.S. 478, 491.5 5 The Subdivision Map Act (S.M.A.), as well as the City’s Code also requires notice in all other proceedings as to all parties except “contiguous property owners” with far less being at risk. 123 The above authority applied to the Complaint and Respondents’ own documents 2(J.A. 426, 427, 428-437), do not permit any other conclusion than the notice and hearing totally failed to provide Appellants due process as constitutionally required. The proceedings and decisions relating to the approval proceedings of the tentative map are also unconstitutional and as such are null and void. Appellants cannot be barred by the statute of limitations upon this record. The acts and omissions of the City were without jurisdiction in the traffic management decision in the fundamental sense. The City was in excess and/or without jurisdiction because of the fatal flaws aforesaid in all the above-described proceedings, decisions and laws and therefore are null and void and not subject to the defense of statute of limitations (Appellants’ Opening Brief at 18-26; Appellants’ Reply Brief at 41-43). The Court’s opinion on page 15 erroneously concludes that “they received sufficient notice and opportunity to be heard,” citing the Horn case as authority. Under no circumstances, can the “notice and hearing” Appellants had, be said to meet the criteria set forth in Horn, for a constitutionally-sanctioned proceeding. As to Appellants’ objections to the traffic regulation adopted and approved by the City, the Court’s opinion is silent. On page 18 of the Court’s opinion, footnote 6, the Court makes nodding reference to Appellants’ objection relating to the unconstitutionality of the truncated statute of limitations. In light of the fact that the Supreme Court has recently so held in Tulsa v, Pope (1988) 485 U.S. 478, it would appear reasonable that the Court would explain their conclusion that Appellants’ objection in this connection is “meritless.” Both the Code of Civil Procedure § 1094.6 and the City’s Code expressly require special notice as required herein as applied to all other classes, except as to the rights of contiguous owners. The Complaints (Second and Third Amended, and Amended and Supplemental) contain the facts to support these objections. The applicable law cited in Appellants’ briefs and in 124 this Petition as applied to the facts in the Complaints, support Appellants’ contentions. For a more recent case applying the Horn Court’s holding, see Selinger vy. Redlands (1989) 216 Cal.App.3d 259. For a contemporaneous decision relating to “pre-seizure” due process requirements, being analogous to “property pre- deprivation proceedings,” see. U.S. v. Daniels (Dec. 18, 1993) 126 L.Ed.2d 490. Appellants earnestly believe that the Respondents’ “speaking” demurrer misled this Court into making errors in the applicable law and misunderstood the facts in Appellants’ Complaint and inadvertently relied on Respondents’ scenario of the facts. ¥. THE PROCEEDINGS FOR THE APPROVAL OF THE FINAL MAP BASED ON THE ADMITTED FACTS ALLEGED IN THE COMPLAINT AND THE UNAMBI- GUOUS LAW RESULT IN THE CONCLUSION THAT SAID PROCEEDINGS OUGHT TO HAVE BEEN ADJUDICATORY Preliminarily to determining the type of hearings requiring “due process” protection, our Supreme Court examined in detail the rationale of the “legislative-adjudicatory” distinction in its landmark decision of Hom vy. County of Ventura (1979) 24 Cal.3d 605 (Horm) and concluded on page 615: In therefore rejecting the concept that subdivision approvals are purely ‘ministerial’ acts requiring no precedent notice or opportunity for a hearing, we thereupon proceed to consider defendants and real party’s secondary arguments. In the Court’s analyses, starting on page 612, nowhere do they make a distinction between temporary or final subdivision approvals, or such other labels. The four pages devoted to this 125 subject demonstrate that it is necessary to examine each case on an individual basis to make this decision. It is clear that on the facts in Appellant’s Complaint, the Horn Court would hold that the proceeding to approve the final map was adjudicatory in nature and therefore is subject to procedural due process protection. The City, in approving the final subdivision map, must comply with all the requirements of the Subdivision Map Act, and in particular, Government Code §§66458, 66473, 66473.5 and 66474. To believe that Government Code §66474.1 overruled all the provisions of the Subdivision Map Act, particularly the chapters dealing with the procedures and requirements for approval proceeding of the final map is incredulous. It is true that it is ambiguous but rules of statutory construction ought to permit a reasonable interpretation that would give effect to the whole Subdivision Map Act. It would be reasonable to assume that in labyrinth legislative process it became convoluted. It would also be a reasonable interpretation that it was the legislative intent to permit a final approval of the tentative map if it complied with the requirements that were applicable at the time of the tentative map and that a modest modification of the tentative map to the final map shall not be grounds for its disapproval if they are substantially the same. In our case, it is clear that neither the tentative or final map complied with the requirements of the Subdivision Map Act. The tentative map is not entitled to res adjudicata principles against parties, much less witnesses. Youngblood vy. Board of Supervisors (1978) 27 Cal.App.3d 644 is no authority to support the Court’s ruling. This case stands for no more than the clause that is liberally sprinkled in among the provisions to the Subdivision Map Act: “that it complies to the requirements that were applicable at the time of the approval of the tentative map.” By applying the provisions of the Subdivision Map Act and the City’s Subdivision Ordinance, Titl f Carl Municipal Code to the facts alleged in the Complaint and its exhibits, it is clear that by following the template of the analyscs 126 that the Horn Court provided us, the proceeding in the case at bar approving the final map had to be an adjudicatory proceeding and subject to procedural due process principles. It necessarily follows that the Appellants sought judicial review by a proper remedy and in a timely manner. Based on the cited law, applied to the facts in the record, Appellants claim that they were deprived of their property, due process and equal protection of the law rights. It should also be apparent to the Court that both the proceedings and the decision approving the final map to the subdivision are null and void. Thus, Appellants would be permitted to challenge same collaterally, if necessary. From these conclusions, it must also be apparent that defense of the Statute of limitations is a “red herring.” From the above, it can be stated that a legislative body (City Council) acting as an administrative hearing tribunal in a subdivision land zoning proceedings is an “adjudicative function.” In the Court’s opinion on page 15, it was error to find that in this case it was non-discretionary and therefore deny Appellants their property and civil rights. It was also error for the Court to hold that §66474.1 of the Government Code, effectively made proceedings and decisions “non-discretionary.” In the Court’s opinion on page 14, it states, “...we presume the City was required to approve the final map”; this was in error. On the record in this case and the applicable law applied to it, it cannot be presumed that the City was required to approve the final map because the Complaint did not allege that: “the final map was not in substantial compliance with the tentative map.” Also, it is an affirmative defense that cannot be established by a demurrer. Attention is respectfully called to the Subdivision Map Act, Title 7, Chapter 3 (Procedures) and Chapter 4 (Requirements). On page 14 of the Court’s opinion it again states in part: 127 As the masses contend the harm caused them arises out of the relocation of the access gate as a condition to approval of the tentative map, the crux of their claim is wrongful approval of the tentative map and not the final map. This statement in form and in substance is in error because it mistakes the law and misunderstands the facts. The facts as alleged in the Complaints do not only not say this, they explicitly state otherwise. Upon close examination, it will be found that the source of the Court’s error was relying on Respondents’ scenario of the facts and not the Appellants’ Complaints. The relocation of the gate may be shorthand to identify the meams used by the City to achieve public safety, however, a full and proper reading of the Complaints show otherwise. If the Compiaints were given “‘a reasonable interpretation, reading it as a whole and its parts in context,” it is impossible to arrive at the Court’s conclusion. By doing so, it will be found that the crux of Appellants’ claim is the injuries caused by the traffic and not the gate. Because of the above-identified errors and omissions, Appellants have been prejudiced and solicitously request that a rehearing be granted and the Court order the City to set aside its decision. 128 PETITION FOR REVIEW OF DECISION BY THE COURT OF APPEAL FOURTH APPELLATE DISTRICT [DIVISION ONE] FILED JUNE 17, 1994 At pages 19-22: D. THE TENTATIVE MAP PROCEEDINGS WERE NULL AND THUS CAN BE COLLATERALLY ATTACKED. 1. The factual basis for this conclusion can be supported by reference to the Joint Appendix? [footnote omitted in printing): Subject Citation “Plaintiffs are citizens of the United States...” 2(J.A. 395:6) “The City is a public entity...” and as such, is a 2(J.A. 396:4,5) person under the civil rights law. The City acted under color of state law. 2(J.A. 397:10-17) The Public Hearing was a sham. 2(J.A. 399: 10-22) One-sided hearing. 2(J.A. 400: 19-25) The notice to the multi-faceted hearing was 2(J.A. 404:20-24) defective; neither the hearing or the notice conform to the standards of the “due process” clause of the Federal or State constitutions. Appellants were deprived of their Federal “due 2(J.A. 404:25-28; process” and “equal protect” rights under the 405: 1-26) Federal Constitution. 9 Footnote omitted in printing. 129 Appellants did not receive reasonable notice 2(J.A. 408:21-24) or opportunity to be heard prior to the depri- vation of its property rights and in violation of its civil rights. Appellants’ property and civil rights were 2(J.A. 411:3-12) denied them in violation of the City’s duty. The violations of Appellants’ rights were caused —-2(J.A. 412-414:1- : by the City’s acts and omissions under color of 18) law and in violation of their constitutional rights. and 1(J.A. 415:4- 21) The City acted under color of state law and 2(J.A. 416:7-28; violated Appellants’ rights as aforesaid causing 417, 418:6-26) Appellants damages and said acts are not isolated. Appellants’ right to possession and use of their 2(J.A. 411:10-12; property is based upon the positive law of 412-415:1-21) California (see Appellants’ Reply Brief 13-17) and provides the substantive bases for its claim under the civil rights remedies law. Requirements for approval of the final map, makes 2(J.A. 408-409:1- it clear that the proceedings ar [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0951%3A3. Public record. Not legal advice.